New Year Resolution for Separated and Feuding Couples

With Christmas around the corner, the start to a new year is also not too far off. For many the new year is about starting afresh, putting the old behind and looking forward to the new. It is the same for those who have separated. 

If you have been stuck in the rut with your ex about settling property matters, now is the time to do it. 

What you have to ask yourself is does it really matter if you have to give a little to bring things to an end or are you hanging on for a reason? 

Sometimes people simply carry on the fight so as not to end the relationship, as signing off on property (or children orders) on a final basis means the relationship has well and truly come to an end. There will no longer be a need to communicate with your ex once you both sign on the dotted line and agree to orders. 

This can be a scary thing for some. Whilst ever there is a fight about property or children there is contact with your partner, all be it unpleasant contact (most of the time). But it is still contact. You are continuing your relationship, just in a different way to before. 

It is exactly for this reason you should take the bull by the horn and make your new year resolution to start afresh. And starting afresh means you need to let go of the old. Remember the saying out with the old and in with the new?

How can you meet someone else while you are embroiled in bitter family law proceedings or simply still arguing with your ex about how property should be divided? And if you have met someone else already they may be tired of you going on and on about how awful your ex is and also want you to move on. Lets face it, no one wants to continuously hear about the other partner's ex spouse. 

So if you are in need of a new year's resolution and you have not sorted out matters between you and your ex, now is the time. 

Let bygones be bygones and move on. It will be worth it. Just think who you will feel when the clock strikes midnight on the 31st of December 2014 and a the new year starts and it will be ex spouse free? 

Hopefully care free and fantastic, ready to embrace the world and face any challenge thrown your way. 

Go for it. 

Family Court System underfunded

According to the KPMG report the Family Court system is underfunded and thus under resourced.

No doubt most lawyers could have told you this before the report, with cases taking up to two years to make their way through the system to a final hearing.

And of course what most lawyers also know is that this type of delay is not good for anyone, particularly the people who rely on this system to make a decision for them.

What does this latest news mean? No doubt more delay.

Some sources say that over the next year twelve judges are due to retire, with no replacements for them on the horizon. It is believed that waiting times will go out to three years.

So not only do people face enormous financial strain by going to the family court, with people spending in excess of twenty thousand dollars to get to final hearing, but they have to wait years for their case to be heard.

It is no wonder some people are turning to divorce mediation as an alternative.

There are organisations like Relationships Australia offering mediation and there are private mediators.

Bass Bay Mediation is one such private mediation service who run their business from the Mornington Peninsula.

www.bassbaymediation.com.au

Surely a solution arrived at by the two parties to the dispute would be better than one imposed on them by a judge after waiting two to three years?

Being Child Focused during Separation

The current phrase in disputes involving children after separation seems to be the phrase ‘child focused’. Clients are constantly reminded to be child focused when thinking about arrangements for the children. It can be difficult though to be child focused in highly emotional times. Often parties think they are child focused when they are not.  

This is by no means surprising. The time when people are separating is the time when sane people do crazy things. Peaceful citizens can turn into angry roaring lions [metaphorically speaking].

Imagine the following scenario (totally fictitious)

Darren comes home early from work after having had a beer or two with his work mates and his wife’s mobile telephone beeps just as he walks in the front door. Without thinking he picks it up and looks at it, the words ‘honey you have a message,’ frozen on his tongue as he reads the rather private words of ‘can’t wait to be with you again’.

When he finds his voice he yells something like ‘how long’s this bein goin on you slut?’ Language might even be stronger than that but we do not want to offend readers.

She of course does not hold back either.

‘Who do you think you are snooping through my phone? When was the last time I looked at your phone? That’s right. I don’t. I respect your privacy. Do you even know what that is, or how to spell it? You useless bastard. Come in here half drunk and expect to tell me what I can and cannot do. When was the last time you listened to me or even looked at me or took me serious?’ There is a pause as she snatches the phone away from him. ‘At least Erik listens to me and appreciates me, which is more than I can say about you.’

Taken aback Darren grabs a beer and heads outside into his shed, seeking solace amongst the half naked woman plastered all over his walls. At least they don’t talk back.

Days later Darren has moved out, after Jenny his wife, locked him out. The police arrive and have to escort him off the premises, giving him a stern warning not to make a nuisance of himself again and not to threaten his ex wife and children.

Darren cannot believe it. It is his house. He paid for it. What is she doing?

Now he wants to see the kids. They are ten and eight.

‘Well, where are you living?’ Snaps Jenny into the phone, juggling shopping, opening a door and kids fighting.

Scratching is head and other parts of his body, Darren is reluctant to answer this.

‘What’s it to you?’ he says instead.

‘I want to know where the girls will be.’ Jenny does not even try to hide her impatience.

‘With me,’ replied Darren starting to get irritated. The police have already been to see him once to warn him about his behavior and language.

‘Yes, I know that,’ replies Jenny. ‘But where will you be?’

“What is this the Spanish inquisition?’ Darren starts to pace the room of his small flat. He does not want Jenny to know where he’s living. It’s the principle. And if he does not want to tell her he won’t. He does not ask her where she’s been every second of the day, nor where she went last weekend. He knows she was not at home.

Ten minutes later Darren hangs up on Jenny muttering fucking bitch under his breath, hoping she has not heard him.

Another ten minutes later the police knock on his door. Clearly she had heard him.

Several months later Darren spends supervised time with his daughters at a contact centre and is trying to find the ten thousand dollars his lawyer has asked him to pay into trust so he can see his girls more.

Darren cannot understand the system or how he, who used to be a hands on dad, has ended up where he is.

Analysis

Arguably neither Darren nor Jenny are acting terribly child focused.

Jenny would have to accept that Darren is the daughter’s father and needs to spend time with them.

If she has genuine fears about the girls safety there would be things she could do, such as offer day time contact only to start off with, until the parties perhaps had a chance to attend mediation to sort out things like why does Jenny want to know where Darren is living and why does he not want to tell her.

Equally Darren could be a bit more proactive and instead of stalking Jenny and his daughters make sure he has living quarters that are suitable for children. If he has a place where each girl has her own room (and or they share a room), with their own bed and clothing etc, there is really no reason why his ex wife cannot know where he lives.

Both parties in this case have taken a particular position without appreciating what their position is doing to their children. They too are caught in their parents turmoil and probably trying to work out how they fit into it.

Lessons to be learned

The Family Court provides some useful information to separating couples, including a form called a parenting questionnaire, which you can find by clicking on this link.

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb7d9f4c3c8bed0/Questionnaire_Parenting_010309V2.pdf

You do not have to be at court to use this form. If there is a dispute between you and your ex about the arrangements for children you may find it useful to sit down and fill out the form to work out what arrangements would be in the best interest of the children and what arrangements would work.

You will see that the form asks things like, ‘how far is it from work to the school the children attend, how do you propose to look after them after school, will you need after school care,’ etc. All practical things one needs to think about when making a proposal about the amount of time one wants to spend with the children or if you want the children to live with you.

The principles about matters the court has to take into account when determining what is in the children’s best interest can be found in section60CC of the Family Law act.

Remember, an agreement reached between you and your ex [say by attending mediation] has to be better than an order by a judge who will only ever see one piece of the 10,000 piece puzzle called your family life.

For mediators around Melbourne try these websites

www.bassbaymediation.com.au

www.relationships.org.au

And, if you are in a dispute with your ex about the children, try and take a step back once in a while and see if both of you are acting in the children’s best interest or if emotions are ruling the decision making. 

Navigating the Application for Consent Orders Form

In our last post we briefly touched on those fortunate people who manage to agree how to divide up their property and are simply looking for a way to finalise this.

It was suggested that the best way for this to occur is to use the form titled Application for Consent Orders together with the minute of order, both of which can be found on the family court web site.

The application form can be somewhat daunting with its 38 pages, but do not fear, it is not that complicated.

The first part is all about providing some information about you and your ex spouse. Basic information including date of birth (of you and your ex spouse), date you started living together as well as date of marriage (if applicable) and date of separation.

Other information you need to disclose is if there are currently other proceedings afoot in relation to family violence, information about any current orders and if either of you or your spouse are bankrupt (to name but a few of the questions).

Once you have completed this part of the form you make your way to part H, where you will need to provide information about income, assets, liabilities and superannuation.

As far as income is concerned you do not need to include any centreline payments. Income is purely what you receive pursuant to a wage.

Under property you and your ex spouse need to set out your current assets. By current assets the form means assets you each own now together or separate. If you are using this form some years after separation and have purchased property in your sole name this will need to be included.

If you own the family home together as joint tenants, you will each own it 50%. Do not set out the assets in this part pursuant to any agreement you have reached. For example, if your ex spouse is to receive the former matrimonial home do not list it just under your ex spouse but as the two of you owning it.

Similarly, if an asset is owned on paper in the name of the other person (the one not receiving it), you will need to list it though as if it was an assets of the person whose name it is legally registered in.

Take care with this section as you a duty to the court and to your ex spouse to comply with full and frank disclosure about your financial situation. Not listing an asset can be a costly mistake if your ex spouse finds out later and decides to have the orders set aside for lack of disclosure.

In our next post we will look at listing current liabilities and superannuation interests.

In the meantime you can find the do it yourself kit by clicking not his link:

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb7d904c3b27c0b/AppConsentOrders_Kit_070612_V1.pdf

Property Settlement by Agreement

We have reached agreement what now?

There are of course plenty of people who are able to agree about their division of property (house, furniture, cash etc.) and never need to see a lawyer. As a lawyer we would never hear about such cases.

If you fall into this category, congratulations.

Reaching agreement however is only the first step.

It can pay to still formalize your agreement. The most cost effective way for you to do this is by way of Application for consent orders and Minute of Order.

Both these documents can be found at the Family Court Web Site.

They look daunting, but are effective and best of all you do not need to see a lawyer. The two of you can do it by yourself.

The other way people often talk of formalizing their agreement is by way of binding financial agreement. This way though both of you will need to obtain independent legal advice, which will be costly.

Both the consent order form and the minute of order will be filed with the court and final property orders will be made. You can use this form for children orders as well.

For financial orders you need to fill in your financial situation now, not at separation.

In our next posts we will look at filling out the form in more detail.

In the meantime you can follow these links to have a look at both documents:

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb7d904c3b27c0b/AppConsentOrders_Kit_070612_V1.pdf

and

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb4bda4b44a8dd2/Consent_Orders_supplement_question010110V1.pdf

Contributions

When a relationship comes to an end and the need arises to divide up property, contributions of the parties are examined closely. Sometimes too closely.

There are different types of contributions:

Direct financial contributions

•  amount of money each party had before the relationship
• wages
• lotto winnings
• payouts such as termination or workers compensation 
• money received from inheritance

Indirect financial contributions

• getting money for a deposit to purchase a house from a relative (parents or grandparents);
• having relatives pay the mortgage/rent to help out in tough times during the relationship

Direct non financial contributions

•  looking after the house and garden
• looking after the children
• cooking the meals, ironing the shirts etc.

 Indirect non financial contributions

• getting help from relatives to renovate

A court will want to know who made the contributions and when.

Usually both parties are considered to have contributed equally to the relationship during the relationship even if one party stayed home and the other went to work.

If one of you received a pay out during the relationship or an inheritance, this will also be taken into account in a property settlement.

What can be important is if one party had a higher initial direct financial contribution to the purchase of property.

Something else the court can take into account is wastage. We will look at wastage in another post.

Determining contributions is only one step in determining property settlement.

It is not unusual for parties to disagree about the type of contributions each of them made and their worth, particularly if one party was the home maker.

If your case is that you made a greater initial direct financial contribution your case will be stronger if you can support this claim by independent evidence including bank statements etc. Of  course sometimes this can be difficult, particularly if the relationship has lasted longer than ten years, with most people only keeping their financial records for the minimum amount of time required.

Remember that in all property cases there is a requirement for full and frank disclosure.

The implications of not complying with full and frank disclosure will be dealt with in our next post.

Don't forget to get independent legal advice for your own case if you are unsure what to do next.  

We only live together

If you have been through a painful and costly divorce you may not want to repeat the experience ever again. And who could blame you?

Unfortunately though, simply living together with someone may not necessarily protect you from further heartache, nor your hip pocket should things not work out.

Since 2009 the Family Court now also has jurisdiction to hear property disputes between de-facto couples. It pays to look at the definition of de-facto to be absolutely clear what you may have to disprove or prove in future court proceedings.

You can find the definition of a de-fcto couple here.

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4aa.html

It will not surprise you to learn that these days many people argue they were not in a de-facto relationship before they even argue about what is a fair property settlement.

So, is the answer not living together with this new found love of your life to avoid court proceedings and argument about how much the other person is worth if it all ends?

No, that will not necessarily protect you either. If you look at the definition of a de-facto relationship, living together is only one of the things the court will take into consideration. A de-facto relationship may still exist based on the other considerations, such as the duration of the relationship, if a sexual relationship existed, the degree of financial interdependence and the reputation and public aspect of the relationship, to name but a few.

Practically this means it is possible for a marriage and de-facto relationship to co-exist (perhaps not in harmony or with the other person being aware of it).

We understand this is not welcome news to someone who has been burnt once, but it is critical you know what to expect going forward in a new relationship.

There are some who believe in signing a pre nup before living together, but that is another topic for another day.

On a philosophical note, if you have fallen in love again and part of you feels like you have jumped off the cliff, enjoy the free fall. You never know, it might work out this time.

Perhaps you will take some comfort in the following:

From Alfred Lord Tennyson's poem In Memoriam:27, 1850:

I hold it true, whate'er befall;
I feel it, when I sorrow most;
'Tis better to have loved and lost
Than never to have loved at all.

http://www.phrases.org.uk/meanings/62650.html

Tips for the self represented litigant in family law

With many people unable to afford legal fees in family law matters, there are more and more self represented people in the courts.

It can be daunting if you have never been in a court process to go to court, let alone stand up and represent yourself. Many people though do find they are forced into this situation from a financial point of view. Not being critical of lawyers, not many people have a spare two or three thousand dollars to pay a lawyer or barrister to appear on their behalf in family law proceedings, let alone the other thousands of dollars it costs to prepare documents. Financial reality leads to self representation.

If you find yourself in that situation you might appreciate some of these tips before your next (or possibly your first) court appearance.

•   Wear smart clothes. Ever heard of the saying ‘the clothes makes the man’? It is true. If you look good you will feel good and project a more positive image about yourself. Turning up in thongs and tracksuit pants will do nothing for you or your case. There is no need to go to the extremes of wearing a suit if you don’t feel comfortable in one. Smart clothes can be casual pants (even jeans as long as they are not full of holes) and a shirt. Taking care of your appearance when going to court lets the judge know you are taking your case serious.

•  Follow court etiquette. Firstly you turn your mobile phone off as soon as you get into court. Don’t turn it to silent, but turn it off. You should also follow directions like standing when the court officer tells people to stand and you should not be having a conversation with someone during court.

•  Remember to be courteous. The judge is there to do a job and his/her job will be easier if people are polite. If you feel you are not being listened to try saying what you have to say differently.

• Depending on what court you are appearing and what type of court event it is you should address the judge as Your Honour. If you are in a court event overseen by a Registrar, you will address them as Registrar. If you are not sure ask someone.

• Don’t interrupt the judge or the other side when they are speaking. You will get your turn.

• Try not to sneer, laugh or show other emotion when the other side is saying something you do not agree with. Practice passive facial expression before court.

• Try not to be too wordy. If the judge asks a question that can be answered with yes or no then do so.

•   Last but not least remember stay calm. If things don’t go your way you cannot/will not improve them by getting angry. Get legal advice if you think a decision has been made against you unfairly. There maybe appeal processes available to you.

This is by no means an exhaustive list and only meant as a guide to those who are contemplating going to court as a self represented litigant.

You should visit the family court website for more information or the federal circuit family law.

http://www.familycourt.gov.au

http://www.federalcircuitcourt.gov.au

http://www.familylawwebguide.com.au/srl-r/pg/start

Pre Nuptial Agreement - to have one or not to have one?

Is a pre nuptial agreement for you?

Thanks to the popular press reporting on the rich and famous, we all know what a pre-nuptial agreement is, more or less. A pre-nuptial agreement relates to a couple agreeing before they enter into a relationship how they are going to divide up the assets should the relationship break down. Some might argue this level of mistrust is not a good start to a relationship, whereas others, usually those with more money, simply see it as a way of ensuring their financial future.

In Australia these agreements are referred to as binding financial agreements (BFA). You can have a binding financial agreement before getting married, before starting to live together or when separated. It is critical that the BFA correctly identifies pursuant to which section the agreement is drafted. Not getting the section right can already lead to a court deciding the agreement is not valid.

When should you have a BFA

Be it over a glass of champagne, a romantic candlelit dinner or some other exquisite setting, the conversation about wanting your so called loved one to sign a BFA can be a bit of a love dampener. It is difficult to imagine how the subject could be broached delicately and tactfully.

‘Darling, you know how you are going to move into my million dollar mansion on Monday?’ He/she says caressing the back of the neck of the loved one. ‘Well would you mind just signing your rights away?’

All jokes aside, a BFA may be beneficial in the following situations:

1.     Both parties have been previously married/in a relationship and wish to protect their assets before merging their lives with another person.

2.     Both of you like the idea of setting out before hand how any property should be divided if it does not work out.

3.     One of you has children from a previous relationship and wants to make sure assets are protected for them.

4.     One party has a lot more assets than the other and wants to be sure both parties know what is to happen when the relationship breaks down.

What if I don’t sign the BFA?

It may be that the new love of your life will simply end the relationship if you refuse to sign the agreement. As the law stands the agreement will only be binding if both of you have received independent legal advice as to the advantages and disadvantages of the agreement prior to signing and you will need to sign the agreement voluntarily.

The conversation with respect to not signing the agreement will no doubt be as difficult as the one about signing the agreement. Love and relationships are about trust and faith; a BFA may spoil those aspects of a relationship, whereas others like the idea of knowing what the future holds.

Other options

There is no other option for setting out what is to happen with property before marrying or living together than a BFA. It may be that if you do not sign the agreement, the magic will be gone from the relationship and you find yourself stranded at the altar.

If you have separated and are confronted with a BFA you do have the option of what is known in legal terms as application for consent orders and minute of order.

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb7d904c3b27c0b/AppConsentOrders_Kit_070612_V1.pdf

The above link will provide you with information on this type of agreement.

Remember that whatever agreement you sign it will need to be done freely and without any form of coercion by the other party. An agreement that is signed after much pressure has been applied, may ultimately not be a binding agreement.

Leaving a violent relationship

Family Violence

The Family Law Act 1979 defines family violence as follows:

1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be
fearful.

2) Examples of behaviour that may constitute family violence include (but are not limited to):

            (a) an assault; or

            (b) a sexual assault or other sexually abusive behaviour; or

            © stalking; or

            (d) repeated derogatory taunts; or

            (e) intentionally damaging or destroying property; or

            (f) intentionally causing death or injury to an animal; or

(g) unreasonably
denying the family member the financial autonomy that he or she would otherwise
have had;

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or his or her child, at a time when eh family member is
entirely or predominantly dependent on the person for financial support.

(i) preventing the family member from making or keeping connections with his or her family,
friends, or culture;

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4ab.html

(above link provides full definition of family violence)

Leaving a violent relationship

Separating from your partner can be difficult at the best of times, let alone separating from a partner who has perpetrated family violence on you, which can seem impossible to do.

Often people stay in violent relationships longer than is necessary because they cannot see a way out. The fear of the unknown is greater than the fear of the violence. Of course family violence
does not only have to be physical violence, as is evident from reading the definition section of the Family Law Act, and can take many forms, some more subtle than others.

Things to consider

An immediate concern might be where do you live and how do you support yourself (this is particularly so for people who have the care of the children). These considerations may take some time to work
out, but remember preparation is the key to a successful separation.  

Financial Assistance

Planning how you leave will be absolutely essential. Try and be as prepared as you can be. If you do not have access to joint funds see centrelink before you leave your partner to see if you are eligible for centrelink payments. You may be surprised to learn that you might also qualify for rent assistance or some other type of emergency payment. Broadly speaking financial assistance may be in the form of:

1.   
Crisis/emergency payments;

2.   
Single parent payments;

3.   
Income support payments;

4.   
Unemployment payments;

5.   
Rental assistance.

You are also entitled to make an application for spousal maintenance to the family court (federal circuit court - family law jurisdiction), particularly if your ex spouse is gainfully employed or runs his/her own business. Unfortunately this can be costly, but if you can demonstrate need and an ability to pay (by
your ex) your ex may also be liable for your legal fees. You should consult with a solicitor about a spousal maintenance application to discuss prospects of success.

Where to live

Once you have sorted out a means to support yourself (and possible the children), work out where you are going to live. This may largely depend on what you can afford. People do not like to be a burden on others so you may not like the option of living with friends or relatives. You should not dismiss it outright, particularly if it was a short term measure and provided you with the opportunity to move out sooner rather than later. If people offer to help you they do so willingly.

If you are having difficulty in getting a rental application approved do not be afraid to get a solicitor to provide a letter to an estate agent setting out your circumstance. Sometimes being honest can help secure a rental property.

What to take

Once you have a place to live make sure you pack essential things you want to take from the house. You may only have a small window of opportunity to get organized without your partner knowing what you are doing. Remember once you leave the home it is unlikely that you will return, so you will only get one chance to take as many things as you want. Make the most of it.

When deciding what to take be practical and remember things like financial documents, important papers and photos. Many a family law dispute includes one party wanting photos and the other not making them available.

Protecting yourself

If you are really worried about your safety you should consider an intervention order (apprehended domestic violence order in NSW) for your protection. The police can issue an emergency intervention order on your behalf for a short period of time until the first court date. At the mention date there may be a short hearing before the Magistrate will grant the intervention order pending final hearing (unless your ex simply consents to its making). A longer intervention order can be applied for at a final hearing.

Final words

The words of wisdom provided here will not cover all your questions about your particular situation. There are many organizations set up to help you, you just need to go and speak to them.

Don’t’ be afraid to get some legal advice.
If you cannot afford to pay a solicitor you could see a lawyer at one of the
many community legal centers. Dedicated and capable volunteer solicitors, who
will be able to provide you with advice with respect to your unique
circumstance, man these places.